Take-Out Pizza, Late Nights at High Court
Tempo at the usually measured Supreme Court picks up in June, as the nine justices save blockbuster cases for the term's end
WASHINGTON — June is pressure-cooker month for the US Supreme Court. The hardest and hottest cases are left until now, and while no steam is rising from the marbled temple, justices and clerks no doubt are scrambling seven days a week to write, compromise, dissent - and decide United States law.
Now is the time when pizza boxes stack higher in chambers and legal tomes spill, like kudzu, off desks, onto couches, and across the floor. Clerks stay up until 3 a.m. debating the separation of church and state, fighting over footnotes, and instinctively choosing primal scream therapy when the computer goes kaput.
"It's now time for decisions," says Evan Caminker, who clerked for former Justice William Brennan. "You are aware the court is making the fundamental law of the land, and things get a little nerve-wracking. The language is getting finalized, and justices are getting more demanding with each other, saying things like, 'I'll join you, but only if you add this paragraph.'"
What's likely happening in those busy chambers now, say former clerks and staff, is a fight over votes in the big cases. It takes five votes to hold a majority ruling.
"The most controversial and divisive cases are kept to the end," says David O'Brien, a speechwriter for former Chief Justice Warren Burger. "It's pretty rough. You've got draft opinions coming out. The majority is trying to hang onto the justices and their votes."
As many as eight major opinions - the largest lot of the 1990s - will arrive soon, part of 23 rulings still pending. The justices will tell Americans whether there is any life left in the Voting Rights Act. Whether religious freedoms for minority faiths are intact. Whether "assisted suicide" is a constitutional right. Whether the Brady handgun law is legal. Whether free speech applies to pornography on the Internet.
All these decisions are the product of a process few Americans know much about. Court staff are tight-lipped, justices are sphinx-like, and clerks might sooner talk with the Grim Reaper than with a reporter. Outsiders never know what opinions will be issued.
Tension was high in the press room at 10 a.m. last Monday, for example, as reporters awaited the weekly handing down of decisions. But when the rulings came, a moan went up. "Three more duds," muttered one scrivener. A network TV reporter bit out, "We aren't going live, I can authorize that."
Behind the marble faade, the basic mechanics of the high court work like this: Between October and April the court hears arguments. In the days after a hearing, justices meet for a preliminary vote. If the chief justice is in a majority, he assigns the opinion to himself or another justice. If he is in the minority, the senior justice in the majority assigns the case.
(In the art of assignment, the majority often gives the case to the pivotal vote to keep that justice on board. This sometimes backfires, as with an affirmative-action case in the mid-'80s, when Chief Justice William Rehnquist gave the writing to former Justice Harry Blackmun, who, once he started writing, changed his mind.)
In the Rehnquist court, the chief justice is known for fair assignments - and for tough deadlines. The court operates under an unspoken rule to finish by month's end, and certainly not later than the July 4 weekend. "Under Rehnquist, there is more pressure to get out opinions quickly, and produce, if you expect good assignments the next term," said a former clerk. "If there is one word I think all chambers would use for Rehnquist it is ... efficiency."
Decisions come out regularly, but things heat up on June 1 - the deadline for all first drafts. In a major case, the justice and clerks writing the opinion may have worked on it for months, hoping to make the logic unassailable. That draft usually gives the justice in dissent a first look at the majority's reasoning. As a rule, the dissenter must finish writing by June 15, allowing only two weeks to answer. So, stakes are high because the case is still "in play." If a dissent is persuasive, it can become a majority opinion - especially in the Rehnquist court, where the majority often prevails by one vote.
"Sometimes it is not until the opinion gets put together that justices focus on it," says one former clerk. "They look again at what it means. Then they often say, 'I'm holding my vote until I see the dissent.' " When the legal juices start flowing, justices could see as many as a dozen drafts before a ruling is finished.
In the current court, much of the tension is between moderates such as Sandra Day O'Connor and Anthony Kennedy, who want to move cautiously, and Antonin Scalia, who seeks clear "bright line" rulings. This was Justice Scalia's approach in a 1990 decision, when he wrote a sweeping opinion striking down religious freedoms in a case about native Americans' right to use peyote in a ritual. (A ruling this month will say if Congress could restore religious exemptions that decision took away.)
Justices are decorous in conduct, of course. "The building really is an ivory tower," said a former clerk to Justice O'Connor. "These are all consummate professionals. Even when Scalia comes down with an inflammatory decision, it's not as if people act differently. There are no fistfights at the Supreme Court."
Instead, repartees are on paper. In a hot end-of-term case in 1994, Justice David Souter circulated a draft on Kiryas Joel, an establishment-clause issue where a Hasidic community in New York sought to be a self-contained school district. Mr. Souter held this to be unconstitutional, and Scalia blasted him in dissent.
Julius Genachowski, a former clerk for Souter, reminded him of Judge Benjamin Cardozo's famous line that the dissenter is like a gladiator making a last stand against the lions. Souter brightened and said, "I think I can do something with that." When Mr. Genachowski read the final opinion, Souter repeated the Cardozo line and added, "Justice Scalia's dissent is certainly the work of a gladiator, but he thrusts at lions of his own imagining."